Opinion
No. W2000-01314-COA-R3-CV.
Filed May 15, 2001. February 20, 2001 Session.
Direct Appeal from the Circuit Court for Shelby County No. 160522; John R. McCarroll, Jr., Judge.
Affirmed; and Remanded.
Robert A. Wampler, Memphis, Tennessee, for the appellant, Lucille Greer Page.
William W. Dunlap, Jr., Memphis, Tennessee, for the appellee, Phillip Owen Page.
David R. Farmer, J., delivered the opinion of the court, in which W. Frank Crawford, P.J., W.S., joined. Holly K. Lillard, J. filed a separate opinion concurring in part, dissenting in part.
OPINION
After twenty-five years of marriage, Phillip Page (Husband) filed for divorce on October 2, 1998 alleging irreconcilable differences. Lucille Page (Wife) filed an answer and counterclaim citing the same allegation. Both parties later amended their complaints to allege inappropriate marital conduct by the other party.
At the time of trial, Husband was a forty-nine year old sales manager earning approximately $95,000 per year with a yearly bonus based upon his company's earnings. Wife was age forty-nine with a B.S. in Business Education. She had been unemployed for nineteen years due to the fact that she served as a homemaker for the majority of the marriage. After the separation, Wife began attending State Tech in Memphis to develop her computer skills.
The trial court granted Wife a divorce on the grounds of inappropriate marital conduct. The court split the marital property in the manner agreed by the parties. Wife requested an award of alimony in futuro , but this request was denied. The court instead granted Wife rehabilitative alimony that varied between $30,000 and $42,000 a year for a period of five years. Wife was also awarded twenty-five percent (25%) of Husband's net bonus check each year for the next five years as alimony in solido . In addition, Wife was awarded fifty percent (50%) of Husband's pension. This appeal followed.
The actual award of rehabilitative alimony varied by years as follows:
Year 1 $36,000
Year 2 $39,000
Year 3 $42,000
Year 4 $30,000
Year 5 $30,000
This check usually amounts to $40,000.
The issues presented by the appellant, as we perceive them, are as follows:
I. Did the trial court err in the type of alimony awarded to Wife?
II. Did the trial court err in the amount of alimony awarded to Wife?
To the extent that these issues involve questions of fact, our review of the trial court's ruling is de novo with a presumption of correctness. See Tenn.R.App.P. 13(d). Accordingly, we may not reverse the court's factual findings unless they are contrary to the preponderance of the evidence. See, e.g., Randolph v. Randolph , 937 S.W.2d 815, 819 (Tenn. 1996); Tenn.R.App.P. 13(d). With respect to the court's legal conclusions, however, our review is de novo with no presumption of correctness. See, e.g., Bell ex rel. Snyder v. Icard, Merrill, Cullis, Timm, Furen and Ginsburg, P.A ., 986 S.W.2d 550, 554 (Tenn. 1999); Tenn.R.App.P. 13(d).
Trial courts have broad discretion to determine whether spousal support is needed and, if so, its nature, amount, and duration. Kinard v. Kinard , 986 S.W.2d 220, 234 (Tenn.Ct.App. 1998); Garfinkel v. Garfinkel , 945 S.W.2d 744, 748 (Tenn.Ct.App. 1996). "Appellate courts are generally disinclined to second-guess a trial judge's spousal support decision unless it is not supported by the evidence or is contrary to the public policies reflected in the applicable statutes ." Kinard , 986 S.W.2d at 234.
Fraysier v. Fraysier, No. E2000-02485-COA-R3-CV, 2001 WL 194351, at *3 (Tenn.Ct.App. Feb. 27, 2001).
Type of Award
Section 36-5-101(d)(1) of the Tennessee Code states that
[i]t is the intent of the general assembly that a spouse who is economically disadvantaged, relative to the other spouse, be rehabilitated whenever possible by the granting of an order for payment of rehabilitative, temporary support and maintenance. Where there is such relative economic disadvantage and rehabilitation is not feasible in consideration of all relevant factors, including those set out in this subsection, then the court may grant an order for payment of support and maintenance on a long-term basis or until the death or remarriage of the recipient. . . . Rehabilitative support and maintenance is a separate class of spousal support as distinguished from alimony in solido and periodic alimony. In determining whether the granting of an order for payment of support and maintenance to a party is appropriate, and in determining the nature, amount, length of term, and manner of payment, the court shall consider all relevant factors, including:
(A) The relative earning capacity, obligations, needs, and financial resources of each party, including income from pension, profit sharing or retirement plans and all other sources;
(B) The relative education and training of each party, the ability and opportunity of each party to secure such education and training, and the necessity of a party to secure further education and training to improve such party's earning capacity to a reasonable level;
(C) The duration of the marriage;
(D) The age and mental condition of each party;
(E) The physical condition of each party, including, but not limited to, physical disability or incapacity due to a chronic debilitating disease;
(F) The extent to which it would be undesirable for a party to seek employment outside the home because such party will be custodian of a minor child of the marriage;
(G) The separate assets of each party, both real and personal, tangible and intangible;
(H) The provisions made with regard to the marital property as defined in § 36-4-121;
(I) The standard of living of the parties established during the marriage;
(J) The extent to which each party has made such tangible and intangible contributions to the marriage as monetary and homemaker contributions, and tangible and intangible contributions by a party to the education, training or increased earning power of the other party;
(K) The relative fault of the parties in cases where the court, in its discretion, deems it appropriate to do so; and
(L) Such other factors, including the tax consequences to each party, as are necessary to consider the equities between the parties.
Tenn. Code Ann. § 36-5-101(d)(1) (Supp. 2000).
The preference for rehabilitative alimony over alimony in futuro was set forth by our Supreme Court in Self v. Self , 861 S.W.2d 360, 361 (Tenn. 1993):
[Tenn. Code Ann. § 36-5-101 (d)(1)] reflects an obvious legislative policy that, if possible, the dependency of one ex-spouse on the other be eliminated and both parties be relieved of the impediments incident to the dissolved marriage, and that an ex-spouse be adjudged permanently dependent upon the other only when the court granting the divorce finds that economic rehabilitation is not feasible and long-term support is necessary.
It is clear from the opinion in Self that a trial court should grant alimony in futuro only when rehabilitation is not feasible and such long term support is necessary. See also Storey v. Storey , 835 S.W.2d 593, 597 (Tenn.Ct.App. 1992). The trial court must, therefore, make a threshold determination that, considering all relevant factors, rehabilitation of the economically disadvantaged spouse is not feasible. See Kincaid v. Kincaid , 912 S.W.2d 140, 144 (Tenn.Ct.App. 1995).
Fraysie r, 2001 WL 194351, at *4.
In the case before us, it is clear that the trial court properly considered and rejected the request for alimony in futuro . The trial court stated in its oral conclusions that "I think that Mrs. Page is entitled to some rehabilitative alimony, and I think it ought to be for a period of five years." In addition, the court unequivocally rejected alimony in futuro . "I don't think there should be any periodic alimony until she remarries or dies; I think it ought to be just rehabilitative." The trial court specifically stated that "pursuant to T.C.A. 36-5-101" Husband "shall pay to [Wife] rehabilitative alimony for a period of five (5) years." As the trial court properly considered the relevant factors as provided under section 36-5-101 of the Tennessee Code, and because we do not find the trial court's award of spousal support to be contrary to the evidence or to public policy, we hereby affirm the trial court's award of rehabilitative alimony.
"[A]n award of rehabilitative alimony remains modifiable by the courts. Tenn. Code Ann. § 36-5-101(d), in pertinent part provides:
An award of rehabilitative, temporary support and maintenance shall remain in the court's control for the duration of such award, and may be increased, decreased, terminated, or extended, or otherwise modified upon a showing of substantial and material change in circumstances.
Thus, the courts retain authority during the period of rehabilitation to modify the award as changing circumstances may require. See Self v. Self , 861 S.W.2d [360,] 363; Loria v. Loria , 952 S.W.2d 836, 838; see also Wiseman v. Wiseman , No. 03A01-9612- CV-00392, 1997 WL 418495, at *2 (Tenn.Ct.App. Jul. 28, 1997), perm. app. denied ; Sommerville v. Sommerville , No. 01-A-01-9502- CV-00070, 1995 WL 498943, at *1 (Tenn.Ct.App. Aug. 23, 1995) ( no perm. app. filed )."
Stockman v. Stockman , No. 01A01-9801-CH-00026, 1999 WL 617637, at *4 (Tenn.Ct.App. Aug. 17, 1999).
We note that Wife has also argued that an alimony in solido award cannot be based on future earnings. Alimony in solido is normally not based on future earnings, however, "[e]xtreme circumstances could arise where it might be necessary to do so." Record v. Record , No. W2000-01294-COA-R3-CV, 2000 WL 1880275, at *10 (Tenn.Ct.App. Dec. 28, 2000) (quoting Aleshire v. Aleshire , 642 S.W.2d 729, 733 (Tenn.Ct.App. 1981)). Upon consideration, we find that the award to one spouse of a yearly bonus check that varies in amount does not qualify as an "extreme circumstance" allowing the court to award a percentage of such bonuses to the other spouse as alimony in solido . However, in light of the factors listed in section 36-5-101(d)(1) of the Tennessee Code, we find that the award to Wife of a percentage of Husband's bonus check is correct. As such, we hereby modify this award and find that Wife should be awarded twenty-five percent (25%) of Husband's bonus check as part of her rehabilitative alimony. The finding of the trial court is affirmed as modified.
Wife refers specifically to the award of 25% of Husband's bonus check.
Amount of Award
"The amount of alimony to be allowed in any case is a matter for the discretion of the trial court in view of the particular circumstances, for the appellate courts are disinclined to review such discretion except in cases where it has manifestly been abused." Hanover v. Hanover , 775 S.W.2d 612, 617 (Tenn.Ct.App. 1989) (citing Ingram v. Ingram , 721 S.W.2d 262 (Tenn.Ct.App. 1986)). Upon our review of the facts and circumstances surrounding the amount of alimony awarded by the trial court in this case, we find that the court did not manifestly abuse its discretion. As such, we hereby affirm the amount of alimony awarded by the trial court.
Conclusion
Based on the foregoing conclusions, we hereby affirm the trial court judgment as modified. Costs on appeal are assessed against the Appellant, Lucille Page, and her surety, for which execution may issue if necessary.
While I concur with most of the majority decision, I must respectfully dissent from the majority's affirmation of the trial court's denial of Wife's request for alimony in futuro. This case illustrates a classic situation with which trial courts now have difficulty dealing, in light of our Supreme Court's decision in Crabtree v. Crabtree , 16 S.W.3d 356 (Tenn. 2000).
In this case, Wife was a homemaker for the last nineteen years of the parties' twenty-five year marriage. Husband had been employed by Helena Chemical Company for twenty-seven years and was a National Sales Manager at the time of the divorce, making, including bonus, roughly $140,000 per year, sometimes more. Both parties were 49 years old. The divorce was awarded to Wife, based on Husband's inappropriate marital conduct.
To her credit, Wife had enrolled at a local technical school to try to acquire computer skills in order to obtain some type of employment. At trial, the testimony most favorable to Husband regarding Wife's prospects for employment was Husband's own testimony, stating his opinion that Helena Chemical Company had jobs available for which Wife could be hired at the conclusion of her training which would pay between $25,000 and $40,000 per year.
Under the majority Opinion, Wife receives rehabilitative alimony and alimony in solido for a period of five years; after that, she receives nothing. Consequently, at the end of the five-year period, if all goes according to Husband's optimistic prediction for Wife's future, Wife will be earning between $25,000 and $40,000 in an entry-level job, while Husband will retain his entire earnings, in excess of $140,000 per year.
The Supreme Court's decision in Crabtree appears to force the trial court to award rehabilitative alimony, and no alimony in futuro, if rehabilitation is feasible to any degree. Crabtree states:
If an award of rehabilitative alimony is justified by the parties' circumstances, a trial court initially should award rehabilitative alimony only. An award of rehabilitative alimony pursuant to Tenn. Code Ann. § 36-5-101 must be predicated upon a finding that the recipient can be economically rehabilitated. Once awarded, rehabilitative alimony may be modified if the recipient's prospects for economic rehabilitation materially change. If rehabilitation is not feasible, the trial court may then make an award of alimony in futuro. Accordingly, a concurrent award of both types of alimony is inconsistent. At the time of the decree, a trial court must necessarily find that the recipient of alimony either can be or cannot be rehabilitated although that determination is subject to later modification. Allowing concurrent awards of alimony in futuro and rehabilitative alimony would require a trial court to engage in an act of clairvoyance. The trial court would not only be required to anticipate the duration necessary for rehabilitation but would also be required to anticipate the future needs of a spouse who, it has been determined can be rehabilitated.
Crabtree , 16 S.W.3d at 360. However, in this case, it does not take a clairvoyant to foresee that, at the end of the five-year period, Husband will be reaping the financial rewards of the parties' joint investment in his twenty-seven year career as an executive, and Wife will be working in an entry-level job earning subsistence-level compensation.
Crabtree leaves the trial court ill-equipped to deal with this classic situation, in which one spouse pursues a high- powered career while the other contributes to the marriage as a stay-at-home parent and homemaker. Of course the homemaker spouse should be encouraged to rehabilitate to the extent possible and obtain some type of employment. Rarely is such a homemaker spouse going to be able to rehabilitate to a degree that she can support herself in a manner that bears any resemblance to the parties' lifestyle during the marriage. However, under Crabtree , if rehabilitation is even minimally feasible, alimony in futuro is foreclosed.
The Court in Crabtree states that alimony in futuro may later be awarded if it turns out that rehabilitation "is not feasible." Id . at 360. This is little comfort to Wife in this situation. If she manages to overcome the obvious obstacles in the job market for a fifty-year old woman who has been unemployed for twenty years and obtains employment paying $25,000 per year, she will be deemed "rehabilitated," making approximately one-sixth of Husband's earnings, and she will never be able to obtain alimony in futuro.
The alimony statutes must provide a method for a trial court to make a fair alimony award to a spouse who has been out of the workforce for many years and who can rehabilitate enough to enter the workforce but earn at best a subsistence living, while the breadwinner spouse continues to enjoy an affluent lifestyle. I see nothing inconsistent, in the statutes or otherwise, about awarding both rehabilitative alimony and alimony in futuro in a situation such as this. If this is not possible, the trial court should be permitted to award alimony in futuro which "steps down" after a reasonable period for rehabilitation. Moreover, the term "rehabilitation" must be viewed against the background of the parties' standard of living prior to the divorce:
We believe this means that in marriages of long duration where a spouse is economically disadvantaged vis-a- vis the other spouse, the parties' standard of living should be the measuring stick by which and against which a court determines whether or not an individual can be rehabilitated. . . . . This is not to say the court must find that the requesting spouse can be rehabilitated to the exact standard of living that he or she enjoyed during the marriage. That standard of living is simply a measuring stick against which the rehabilitation analysis is made. In the final analysis, the court should determine whether the evidence preponderates that the requesting spouse can be restored to a standard that is reasonable when compared to the parties' pre-divorce standard.
Robertson v. Robertson , 2000 WL 121314 (Tenn.Ct.App., Aug. 25, 2000) at *2 (perm. to app. granted March 12, 2001.
I believe that the current status of the law on this issue does a disservice to spouses who find themselves divorced after spending many years contributing to the marriage as a stay-at-home parent and homemaker. If the law is not clarified by our Supreme Court in a manner which permits a trial court to reach a just result in such a situation, the problem should be remedied by our Legislature. On this basis, I respectfully dissent.